CHICAGO (CN) – Two Americans who worked for a private Iraqi security firm can sue former Defense Secretary Donald Rumsfeld for damages for the torture they say they suffered at the hands of U.S. forces, a divided 7th Circuit panel ruled.
Donald Vance and Nathan Ertel worked for Shield Group Security, a private security firm operating in the Red Zone outside of Baghdad. Suspecting that their employer was involved in illegal arms trading, bribery, weapons stockpiling and other illegal activity, the pair began reporting alleged wrongdoings to the U.S. government.
In April 2006, Shield officials became suspicious of Vance and Ertel, confiscating their credentials and effectively trapping them in the firm’s compound. U.S. forces came to the compound and took the pair the U.S. Embassy.
But Vance and Ertel say their rescue soon turned into a nightmare. According to their complaint, U.S. officials transported them to Camp Cropper, where they were kept in solitary confinement and subjected to physical and psychological torture with no ability to contact their families or lawyers. Vance was allegedly kept in solitary confinement for three months, and Ertel for six weeks.
“If the plaintiffs’ allegations are true, two young American civilians were trying to do the right thing by becoming whistleblowers to the U.S. government, but found themselves detained in prison and tortured by their own government, without notice to their families and with no sign of when the harsh physical and psychological abuse would end,” Judge David Hamilton summarized.
After being returned the United States without being charged with a crime, Vance and Ertel sued Rumsfeld, claiming that he personally approved the interrogation and torture techniques they had endured.
U.S. District Judge Wayne Andersen denied Rumsfeld’s motion to dismiss the suit, finding that the plaintiffs’ claims, if true, “adequately alleged Secretary Rumsfeld’s personal responsibility for their treatment.”
The 7th Circuit upheld the bulk of that decision Monday.
The court found that a Bivens remedy, which allows personal lawsuits against government officials who violate clearly established constitutional rights, should be available to U.S. citizens in a war zone, “at least for claims of torture or worse.”
“We conclude that the plaintiffs have sufficiently alleged Secretary Rumsfeld’s personal responsibility,” Hamilton wrote in an 82-page majority opinion. “While it may be unusual that such a high-level official would be personally responsible for the treatment of detainees, here we are addressing an unusual situation where issues concerning harsh interrogation techniques and detention policies were decided, at least as the plaintiffs have pled, at the highest levels of the federal government.”
After Congress limited allowable interrogation techniques to those authorized in the Army Field Manual through the Detainee Treatment Act, Rumsfeld added 10 classified pages describing cruel, inhuman and degrading techniques, Vance and Ertel claimed
Rumsfeld, represented by Obama administration lawyers, argued that judicial review of military actions was not appropriate. The federal appeals court disagreed.
“Recognizing the plaintiffs’ claims for such grave – and, we trust, such rare – constitutional wrongs by military officials, in a lawsuit to be heard well after the fact, should not impinge inappropriately on military decision-making,” Hamilton wrote.
“Courts reviewing claims of torture in violation of statues such as the Detainee Treatment Act or in violation of the Fifth Amendment do not endanger the separation of powers, but instead reinforce the complementary roles played by the three branches of our government.”
The court also rejected Rumsfeld’s claims of qualified immunity, finding that a “reasonable official in Secretary Rumsfeld’s position in 2006 would have realized that the right of a United States citizen to be free from torture at the hands of one’s own government was a ‘clearly established’ constitutional right and that the techniques alleged by plaintiffs add up to torture.”
Though the court recognized that its decision could open the floodgates to similar claims, it held that the rights allegedly violated deserve judicial protection.
“These plaintiffs have alleged a grave breach of our most basic social compact – between ‘We the People’ and the government we created in our Constitution,” the majority said.
“If we were to accept the defendants’ invitation to recognize the broad and unprecedented immunity they seek, then the judicial branch – which is charged with enforcing constitutional rights – would be leaving our citizens defenseless to serious abuse or worse by another branch of their own government.”
The appellate panel did reverse Andersen’s ruling that the plaintiffs could pursue claims for property taken during their detention, finding that Rumsfeld was protected by the “military authority” exception to the Administrative Procedure Act.
In a 10-page dissent, Judge Daniel Manion accused the majority of misunderstanding the crux of the case.
“For starters, this case is not about constitutional rights, against torture or otherwise – the defendants readily acknowledge that the type of abuse alleged by the plaintiffs would raise serious constitutional issues,” Manion wrote. “Rather, this case centers on the appropriate remedies for that abuse and who must decide what those remedies will be.”
“Confronted by allegations as horrible as those described in this case, it is understandable that the court concludes that there must be a remedy for these plaintiffs,” the dissent states (emphasis in original). “But that concern should not enable this court to create a new law. … I dissent because sorting out the appropriate remedies in this complex and perilous arena is Congress’s role, not the courts.'”
Courts should be especially cautious before opening a Pandora’s box to Bivens claims, Manion wrote, citing decisions by the D.C. and 2nd Circuits.
“I agree with the court that allegations of torture against a U.S. citizen are a very serious matter,” he added. “But given the significant pitfalls of judicial entanglement in military decisionmaking, it must be Congress, not the courts, that extends the remedy and defines its limits.”
Rumsfeld’s attorney released a fiery statement criticizing the 7th Circuit’s ruling.
“Having judges second guess the decisions made by the armed forces halfway around the world is no way to wage a war,” attorney David Rivkin said. “It saps the effectiveness of the military, puts American soldiers at risk, and shackles federal officials who have a constitutional duty to protect America. … Vague and unsupported allegations should not be sufficient to pull cabinet officials and military officers and soldiers up and down the chain of command into court and distract them from their duty to the country.”
Rivkin says he is confident that “this legally mistaken and factually unsupported decision” will be overturned.
The majority noted that Vance and Ertel must still prove Rumsfeld’s involvement if the claims make it to trial.
“We express no view at this stage as to whether plaintiffs can prove their factual allegations,” Hamilton wrote. “The former rank of the defendant, however, is not a basis for rejecting the plaintiffs’ claims.”
This is the second such lawsuit allowed to proceed against Rumsfeld. Last week, a Washington federal judge approved nearly identical claims by an unnamed Army veteran.